ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012481
A concert venue
Ray Ryan BL
Ciaran Loughran, IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001
Date of Adjudication Hearing: 05/06/2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
In accordance with Section 41 of the Workplace Relations Act, 2015, this complaint was assignedto me by the Director General. I conducted a hearing on June 5th 2018, and gave the parties an opportunity to be heard by me and to present evidence relevant to the complaint.
At the hearing, the complainant was represented by Mr Ray Ryan BL, instructed by Ms Órla Clarke of O’Connell and Clarke Solicitors. The respondent was represented by Mr Ciarán Loughran of IBEC and he was accompanied by the respondent’s head of personnel, the complainant’s line manager and the house manager.
This complaint was submitted on December 19th 2017 and a hearing was arranged initially for February 28th 2018. This was postponed and arrangements were then made for a hearing on April 5th. At the request of the complainant’s solicitor, Ms Clarke, this was adjourned. In the course of the correspondence on the adjournment, Ms Clarke wrote to say that she filed a new complaint of penalisation, under section 15 of the Protection of Employees (Part-time Work) Act 2001. She said that she thought that this had been submitted on February 22nd, and when she discovered that it had not been received by the WRC, it was submitted on March 8th 2018, under ADJ-00013613. While both complaints were heard at one sitting, two separate decisions have been issued under ADJ-00012481 and ADJ-00013613.
The respondent organisation is a concert venue that hosts around 1,000 events each year and the complainant has been employed there on a part-time, casual basis since 2011 as part of the back-stage crew. His complaint is that his rate of pay does not reflect his service and experience and he has not been given the opportunity to attend professional training. On this basis, he argues that he is treated less favourably than full-time employees.
Summary of Complainant’s Case:
The complainant works with the back-stage crew, five of whom are part-time casual employees. He works an average of 26.5 hours per week and earns €12.94 per hour, resulting in an average weekly income of €352.62 gross.
At the hearing, the complainant outlined the responsibilities of his role, which involve setting up the stage for performances and looking after the requirements of performers on concert days. He also said that he sets up meeting rooms and IT equipment and does a small bit of lighting. He said that he generally works five days a week, although, in accordance with his contract, he can work the days that suit him. He said that he never refuses work, as this would have an effect on his entitlement to social welfare, which he claims for the days he is not working.
In the booklet of documents produced in evidence, there is a copy of an e mail that the complainant sent to his manager on May 30th 2017. In the mail he requested clarification about his rate of pay. He said:
“I have recently been made aware that I am being paid a different rate of pay to that of my full-time colleagues. I understand that I am employed on a zero hour contract, but this should not detract from the fact that I fulfil the same duties as full-time members of the back-stage staff.
“If this is the case, I would like to formally request that I am moved to the equivalent pay grade as my full-time colleagues in the back-stage department.”
On June 7th, the operations and HR manager replied:
“Your contract stated that you are employed on a part-time / casual basis and your appointment is part-time. You therefore work irregular, variable hours, which you confirmed in your recent request regarding how your holiday pay is treated.
“As a part-time casual you have the right to refuse work. Contrary to what you state below, this right therefore means that you are not employed on a zero hour’s contract as such a contract would not permit you to refuse work.
“There is no scale for employees on casual contracts who can refuse work. There are no full-time comparators in the (respondent company) who can refuse shifts or work irregular hours and therefore, for this reason, your request to be placed on an equivalent pay grade to full-time workers cannot be granted.”
In support of his complaint that he is treated less favourably because he is a part-time casual worker, the complainant named a full-time member of the back-stage team as his comparator. This person is employed on a full-time, permanent contract and is entitled to a public service pension and sick pay.
Following receipt of the e mail above, the complainant contacted his SIPTU representative and a meeting took place on October 10th 2017. Nothing changed as a result of this intervention and on December 19th, he submitted a complaint to the WRC.
In respect of the complainant’s grievance about not being permitted to attend professional training programmes, he referred to the first aid training which was only scheduled for full-time employees.
In support of the complainant’s case, Mr Ryan referred to the Labour Court determination in Dundalk Town Council and David Teather, PTD 113. Mr Teather was a retained fire-fighter with Dundalk Town Council and he argued that he should be permitted to act up in the role of Officer in Charge instead of a less senior full-time fire-fighter. The Labour Court determined in his favour.
Referring to the issue of what is written in a contract, compared to what happens “on the ground,” Mr Ryan said that the complainant never refused work, so there is no merit in using this “entitlement” as a part-time worker to differentiate him from the full-time worker. He referred to the case of Autoclenz Limited v Belcher and Others,  IRLR 70., where the UK Supreme Court found that, despite the fact that Belcher and others had a contract of employment which described their status as “self-employed contractors,” they were in fact, employees. Nowhere in the complainant’s contract does it say that he has the right to refuse work. Mr Ryan argued that, apart from the reference in the complainant’s contract to the casual nature of his employment, “what happens on the ground” must be considered as the determining issue.
Summary of Respondent’s Case:
For the respondent, Mr Loughran argued that the complainant’s status as a casual, part-time worker with the right to refuse work means that he has no claim under the Protection of Employees (Part-time Work) Act 2001. He argued that there is no full-time person with whom the complainant can compare his rate of pay. In making this argument, the respondent is relying on the ruling of the Court of Justice of the European Union (CJEU) in the case of Nicole Wippel v Peek & Cloppenburg GmbH & Company K, [12 October 2004], C-313/02. For convenience, in the remainder of this document, we will refer to this as “the Wippel case.”
The person identified by the complainant as his comparator is a full-time stagehand. Full-time employees of the respondent company work set hours and the named person works an alternate shift of 9.00am to 5.00pm and 3.00pm to 11.00pm. This person is contracted to work these hours and has no discretion to refuse to work any shifts.
The Complainant’s Terms and Conditions
Similar to the claimant in the Wippel case, the complainant is employed on a casual basis. His contract provides that his “hours of attendance are flexible and as scheduled by the manager. Your normal working hours can fall between 9.00am to 10.45pm Monday to Sunday.” He advises the respondent when he is available for work and can refuse shifts when it suits him. Evidence was presented where the complainant replied by text message on three occasions that he was not available to work certain shifts. In 2015, the complainant worked for a number of weeks for a music group and was less available for work with the respondent during that time.
The respondent’s case is that, like Ms Wippel, the complainant cannot identify a full-time, comparable employee because full-time employees in the respondent organisation do not have the right to refuse shifts or to influence the organisation of their working week. On this basis, they argue that the complainant is not being treated less favourably than a comparable full-time worker because there is no such employee with whom he can compare himself.
The complainant asked to be moved to a pay scale equivalent to the full-time employee that he compared himself with. This pay scale applies to an employee who works a fixed-number of hours on a fixed shift. Part-time, casual employees are paid an hourly rate of pay.
As part of his complaint that he was treated differently to full-time workers, the complainant said that he was excluded from professional training and at the hearing, he specifically referred to first aid training. However, Mr Loughran said that the complainant attended many training sessions and was paid for three hours for attending each one. These include fire safety training and a staff engagement workshop. He was invited to attend child protection training on December 18th 2017 but he declined this invitation.
The Relevance of the Wippel Case
Mr Loughran outlined the basis of the Wippel case. This concerns whether a part-time and full-time worker can be compared, where the part-time worker has the ability to refuse work and whose hours of work are not fixed but are dependent on the quantitative requirement of the work to be performed. Like the complainant in the case under consideration here, who attends work based on the use of the concert venue, this refers to a part-time worker who is called in to work according to the needs of the business.
The CJEU ruling in Wippel examines whether a part-time contract based on the needs of a business results in less favourable treatment of the part-time worker compared to a full-time worker. Paragraph 59 of the ruling states:
“A part-time employee working according to need, such as Ms Wippel, works under a contract which stipulates neither the weekly hours of work nor the manner in which working time is to be organised, but it leaves her the choice of whether to accept or refuse the work offered by P&C. The work is remunerated by the hour only for the hours actually worked.”
Comparing the stipulations of a full-time contract, paragraph 60 states:
“A full-time worker works under a contract which fixes a working week of 38.5 hours, fixing the organisation of the working week and salary, and which requires him to work for P&C for the whole working time thus determined without the possibility of refusing that work even if the worker cannot or does to wish to do it.”
Concluding that Ms Wippel’s contract is different to that of a full-time worker, paragraph 61 states:
“Under those circumstances, the employment relationship referred to in the preceding paragraph hereof differs, as the subject-matter and basis, from that of a worker such as Ms Wippel. It follows that no full-time worker in the same establishment has the same type of contract or employment relationship as Ms Wippel.”
Paragraph 62 concluded that:
“In the circumstances of the main proceedings, there is therefore no full-time worker comparable to Ms Wippel within the meaning of the Framework Directive annexed to Directive 97/81.”
Directive 97/81/EC is the social policy directive on the equal treatment of part-time and full-time employees and male and female employees.
Mr Loughran referred to section 7(1) of the Protection of Employees (Part-time Work) Act 2001 which provides that,
“a ‘part-time employee’ means an employee whose normal hours of work are less than the normal hours of work of an employee who is a comparable employee in relation to him or her.”
Section 7(3) of the Act sets out the conditions which allow a part-time person to compare themselves to a full-time employee:
“( a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
“( b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
“( c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”
For a claim of less favourable treatment to succeed, Mr Loughran said that the part-time employee must show that he or she has suffered from less favourable treatment compared to a comparable full-time employee. The respondent’s case is that the complainant has not identified a comparable full-time employee as he does not work under the same or similar conditions as the person with whom he compares himself. Also, based on the Wippel ruling, a full-time worker who cannot refuse shifts cannot be held up as a comparator with a part-time worker who is allowed to refuse shifts.
Summary of the Respondent’s Position
In view of the Wippel precedent and, given the differences in the contractual relationships, the complainant cannot show that he and the full-time person he identified “perform the same work under the same or similar conditions.” Mr Loughran referred to the “reduced mutuality of obligation” which exists between the complainant and his employer which means that no comparison can be made between him and a full-time employee. Full-time employees cannot refuse to perform work because they are contractually obliged to make themselves available for set hours at specific times in the week. The employer’s obligation is definitive; they cannot reduce the hours of the full-time person even if the business does not require them to be at work. The respondent has no such obligation to the complainant, who is employed as he is required by the business.
In conclusion, Mr Loughran referred to a previous hearing at the WRC in December 2016 with this respondent, ADJ-00002967. This was a similar complaint under the Part-time Work Act. Having regard to the Wippel ruling, and the decision of the Rights Commissioner in r-43289-pt-06/JT, the Adjudicator decided that this complaint failed.
Findings and Conclusions:
The Complainant’s Identification of a Comparable Full-time Worker
The employee named by the complainant is a full-time permanent employee on a fixed two-shift roster. He was described by the house manager in his evidence as “the senior man.” While he may do work the same work as the complainant, his obligations are fixed and he cannot, without consequences, refuse to work any shift.
Having considered this matter, I find that the person identified by the complainant, as a full-time worker, is not comparable to him as a part-time worker because he does not work “under the same or similar conditions” as his full-time colleague. The complainant is not constrained by the two-shift structure of the full-time stagehand and he has the freedom to work the hours that suit him. While he may elect to work 20 or 30 hours each week, as a part-time worker, the complainant’s time commitment is not the same as that of the full-time employee.
While the complainant said that he “never” refused work, it is apparent from the evidence that he refused work in the past, and that he has the option to do so in the future. In 2014, he was permitted to work significantly reduced hours compared to other years. It is also apparent that the respondent has the option not to call him in to work, or, to request him to work more hours in one week compared to another week. This was the case in 2016, when the venue was heavily in use for the centenary of the 1916 Rising.
The Wippel Ruling
For the respondent, Mr Ryan argued that the Wippel case has no application here and, as a more relevant precedent, he cited the Labour Court determination in Dundalk Town Council and David Teather, PTD 113. Mr Teather was a retained fire-fighter with Dundalk Town Council and he argued that he should be permitted to act up in the role of Officer in Charge instead of a less senior full-time fire-fighter. I have considered this case and it is my view that the facts in the Teather case are not reflected here, as Mr Teather argued for the right to do the same work as his full-time colleagues. In the case of the complainant in the instant case, he is not prevented from doing the same work as his full-time colleagues, but, as a part-time casual worker, he is employed on different contractual terms.
Mr Ryan also referred to the first High Court case of Barry v the Minister for Agriculture,  1 IR 215, where Mr Justice Edwards found that where a “mutuality of obligation” exists between an employer and an employee, then the employee clearly has a contract of service. My Ryan pointed out that in the instant case, the complainant clearly has a contract of service. The subject matter of the Barry case is not relevant here; however, Mr Justice Edwards’ clarity on the mutuality of obligation test is worth quoting:
“The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer.”
There is no doubt that mutuality of obligation exists between this complainant and his employer. However, because the complainant has the freedom to decide how many hours each week he wants to work and, because his employer has discretion to decide how many hours to offer him, the degree of obligation on both parties is less than that which exists in the relationship between the employer and the full-time employees.
In the case of Autoclenz v Belcher and Others, cited by Mr Ryan, the UK Supreme Court found that the documents that described the claimants who were car valeters as sub-contractors contradicted the reality of the relationship between them and their employer and that “the tribunal was entitled to disregard the written terms…” The complainant here has not argued that he is a full-time or a permanent employee and I find that the description of his status as a “casual part-time worker” is consistent with the reality of his situation.
Having considered the arguments presented by the parties, it is my view that I must follow the outcome of the CJEU in the Wippel ruling at paragraph 61 which concludes:
“It follows that no full-time worker in the same establishment has the same type of contract or employment relationship as Ms Wippel.”
I find that a person with a contractual obligation to come to work for a fixed number of hours each week, who cannot decide on one or more of those days, to work somewhere else, or not to work at all, cannot be compared to a person who has precisely that level of discretion. I conclude therefore that the complainant has not identified a comparable full-time employee and, for this reason, his complaint of less favourable treatment cannot succeed.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons set out in the section above, I have decided that this complaint is not upheld.
Dated: October 25th 2018
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Part-time worker, comparable full-time worker